Julian Assange's extradition stayed thanks to quick legal footwork

Dinah Rose QC buys her client another two weeks - much to the supreme court's embarrassment

Joshua Rozenberg

It was all going so well. Lord Phillips, soon to retire as president of the supreme court, was explaining the judges' reasoning in clear English suitable for a world-wide live television audience. By a majority of five to two, the supreme court had agreed with the lower courts that the Swedish prosecutor qualified as a "judicial authority" and could therefore issue an European arrest warrant for Julian Assange.

It looked as if he had lost his final appeal against extradition. Two burly security guards ensured that not a peep was heard from Assange's supporters in court. The judges had been warned that Dinah Rose QC, his fearless counsel, wanted to address the court. But they were not prepared for what she had to say.

That was largely their own fault. Normally, draft judgments are circulated to counsel up to a week before delivery. That enables the lawyers to point out minor errors: a name mistyped, a date wrong and so on. It's something of a safeguard for the judges. But since it was the Wikileaks man whose appeal they were hearing, the supreme court justices were taking no chances. To avoid leaks, lawyers were not shown the judgments until 8.30 this morning.

That was just enough time for Rose to work out that the court had based its reasoning on a point that had never been argued at the two-day hearing in February. Assange, who didn't turn up for the judgment, knew nothing of what was being done on his behalf.

It's not unusual for judges to think up points that were never mentioned during a hearing. They had done so in this case, on a completely different point, and had asked both sides for written observations after the hearing. But nobody had ever asked counsel about the issue on which the majority had apparently based their decision.

This was the point raised by Phillips in paragraph 67 of the judgment. As he explained, the 1969 Vienna convention on the law of treaties permits recourse, as an aid to interpretation, to "any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation". In other words, if countries had subsequently interpreted "judicial authority" in the framework direction to include a prosecutor, that must have been what the treaty meant.

That was only one of five reasons given by the supreme court president. But his colleague Lord Walker said, in paragraph 94, that the Vienna convention point was "determinative". Lord Brown, in the next paragraph, said he was inclined to base his conclusion "principally on the fifth of Lord Phillips's reasons". In Brown's view, it was "ultimately critical".

Lord Kerr (paragraph 108) left the point undecided. And Lord Dyson cited the treaty before saying, in paragraph 131, that past practice established acquiescence in arrest warrants being issued by prosecutors. So it's arguable that at least three judges regarded the point as decisive, a majority of the majority. But were they entitled to take account of it?

The judges gave Rose two weeks to make written submissions on this point. "If she decides to do so", they said later, they would "then decide whether to re-open the appeal and accept further submissions (either verbally through a further hearing, or on paper) on the matter."

In the end, the judges may decide that they were entitled to take the Vienna convention into account. In that event, they would presumably confirm the decision they delivered today. But given two weeks to prepare her case, Rose could well come up with other arguments. In the meantime, Assange can stay in the UK.

All this must be very embarrassing for the supreme court. As far as I know, it has not reopened a case since it opened for business nearly three years ago. The law lords, from whom the supreme court judges took over in 2009, reopened only one of their decided cases.

That was in 1998, on the question of whether Augusto Pinochet could extradited to Spain, where the former Chilean dictator was facing charges of torture and hostage-taking. Lord Hoffmann, one of the judges, sat while disqualified as a matter of law and Clare Montgomery QC persuaded the law lords that they had the inherent power to reopen their previous decision.

This time round, she is representing the Swedish prosecutor. Montgomery was working on another case this morning and did not attend the supreme court for what was meant to have been a formal "hand-down" judgment. But she did not go unmentioned. The normally unflustered president of the supreme court addressed Rose as "Miss Montgomery" and was sharply corrected by Assange's counsel.

It all goes to show that, in the law, things don't always turn out as you expect. For reasons that are nothing to do with the sexual assault charges that Assange may face in Sweden, and still less to do with Wikileaks, he lives to fight another day.

This article was corrected at 1.25pm on May 30. We said that Julian Assange had been charged in Sweden. The Swedish Prosecution Authority has not yet charged him, but seeks his extradition after accusations of